188

NAME OF PERSON INJURED.

a charge of stealing a horse would be sustained by proof of stealing a gelding, a mare, a colt, or a filly (y), is by no means clear; though, if the principle be carried out to its legitimate extent, it would seem that no fatal variance would, in such case, arise.

§ 188. The name of the person injured is also matter of essential description, and must be proved with a precision which is but little calculated to engender any ardent feelings of respect for the criminal law. Thus, at the late trial of Lord Cardigan in the House of Peers for duelling, the indictment charged his lordship with feloniously shooting "Harvey Garnett Phipps Tuckett," but inasmuch as the counsel for the Crown failed to prove that these specific names belonged to the party wounded, the noble prisoner was acquitted. So, where a married woman was indicted for murdering "an infant male child aged about six weeks and not baptized," the judges held that her conviction could not be sustained, as it appeared in evidence that the child was her own, and had been born in wedlock, and therefore it must necessarily have had the surname of its parents (z). If the name of the injured party cannot be ascertained by any reasonable diligence, it will be sufficient to describe him in the indictment as a person "whose name is to the jurors unknown;" but this is a somewhat dangerous form, as, if it should appear at the trial that the party was known, and that his name might consequently have been discovered, the prisoner will be acquitted. Thus, where property was laid in one count as belonging to certain persons named, and in another to persons unknown, and the prosecutor failed to prove the christian name of some of the parties mentioned in the first count, he was not allowed to have recourse to the second count (a). So, in a case of child murder, where the deceased, being a bastard child, was described in one count as Harriet Stroud, and in another

(y) These are the words used in 7 & 8 Geo. 4, c. 29, § 25. It should be observed that, under the repealed acts of 1 Edw. 6, c. 12, § 10, and 2 & 3 Edw. 6, c. 33, which only mention "horses, geldings, and mares," it was held that proof of stealing a filly supported an indictment for stealing a mare, R. v. Welland, R. & R. 494.

(2) R. v. Biss, 8 C. & P. 773; 2 Moo. C. C. 93; MS., S. C.

(a) R. v. Robinson, Holt, N. P. R. 595, per Richards, C. B.; R. v. Campbell, 1 C. & Kir. 82.

NAME OF PERSON INJURED.

189

as a female infant whose name was unknown, and it appeared that the child was christened "Harriet," but there was no evidence of its ever having been called by the name of " Stroud," the judges held that the prisoner could not be convicted on either count (b). In Ireland, also, where a woman was indicted for murdering her bastard child, his name being to the jurors unknown, the Court directed an acquittal on proof that the child was two or three months old, and that the mother had once or twice been heard to call him "Johnny " (c); though a count similarly framed has been sustained in England, the mother having on one occasion called the child "Mary Ann," and on another "Little Mary." In this last case the child, which was illegitimate, was only twelve days old when it was murdered, and as the mother had called it by two different names, it was impossible to say which (if either) was the right one (d). It should be observed that an illegitimate child is not entitled to the surname either of the mother or of the putative father, but can only acquire such name by reputation (e), though slight evidence on this head would be sufficient to warrant a jury in finding, that a bastard, mentioned in an indictment by the name of its father or mother, was properly described (ƒ). If no evidence can be given that an illegitimate child has acquired a name by reputation, its identity should be fixed in the indictment by showing the name of its mother (g).

§ 189. It is not necessary to describe a party by what is, in strictness, his right name; but it will be sufficient to state any name he has assumed (h), or by which he is generally known,

(b) R. v. Stroud, 1 C. & Kir. 187; 2 Moo. C. C. 270, S. C.

(c) R. v. Sweeny, Ir. Cir. R. 366, per Ball, J. His lordship observed-" It may indeed be a question whether an objection, such as is now made, which goes not to the merits of the case, ought to be allowed to prevail. But sitting here in a judicial, and not in a legislative capacity, I feel it my duty to give the prisoner the benefit of a point, which eminent judges have considered as valid." See R. v. Walker, 3 Camp. 264.

(d) R. v. Smith, 1 Moo. C. C. 402; 6 C. & P. 151, S. C.

(e) R. v. Waters, 1 Moo. C.C. 457; 7 C. & P. 250, S. C.; R. v. Clark, R. & R. 358. (f) R. v. Evans, 8 C. & P. 765, per Erskine, J.; R. v. Sheen, 2 id. 634, per Burrough, J.

(9) R. v. Hogg, 2 M. & Rob. 380, per Lord Denman.

(h) R. v. Norton, R. & R. 510. See R. v. Williams, 7 C. & P. 298.

190

IDEM SONANS-NAMES OF JOINT-OWNERS.

and the omission of a second christian name has been frequently held immaterial (i). In Ireland, however, on an indictment for bigamy, in which the second wife was described as Margaret Courtenay, but it appeared that she was baptized and married by the name of Mary Margaret Courtenay, that letters were addressed to her in that form, and that she so signed her name, the variance was held to be fatal, though she was familiarly called Margaret, and went by that name (j). The proper mode of describing a peer is by his christian name and rank in the peerage; but it seems that under the degree of a duke, it will be sufficient to confer on him the simple title of "lord" (k). It is scarcely necessary to remark, that though a parent and child bear the same name, it will suffice, in an indictment, to describe the latter. by that name without the addition of "junior" (1).

§ 190. Though it be essential to state the name of the injured party with common accuracy, a mere error in the spelling will not be material, unless it cause a distinct alteration in the sound of the name. Thus, Whyneard and Winyard (m), Segrave and Seagrave (n), Benedetto and Beniditto (0), have been held substantially the same names, while M'Cann and M'Carn (p), Tabart and Tarbart (g), Shakspeare and Shakepear (r), have been deemed fatally variant. In order to obviate the difficulties that would necessarily arise from the application of this rule to cases where joint-stock companies, trustees, or other joint-owners have been injured, several acts of parliament have been passed, which render

(i) Att.-Gen. v. Hawkes, 1 Tyrwh. 3; R. v. Berriman, 5 C. & P. 601 ; R. v. ———, 6 id. 408; Williams v. Bryant, 5 M. & W. 447. See 2 Russ. C. & M. 795-797. (j) R. v. M'Anerney, Ir. Cir. R. 270, per Crampton, J.

(k) R. v. Pitts, 8 C. & P. 771, where the prosecutor was described as "George Talbot Rice Lord Dynevor," instead of "George Talbot, Baron Dynevor;" R. v. Elliott, id. 772, where the words were, " The Right Honourable William Fitzhardinge, Lord Segrave," he being an Earl. It seems that "Edward Bishop of Hereford" is not a sufficient description, id. 771.

(1) R. v. Peace, 3 B. & A. 579 ; R. v. Hodgson, 1 Lew. C. C. 236, per Parke, B.; R. v. Bland, id., per Bolland, B.; Sweeting v. Fowler, 1 Stark. R. 106; R. v. Bayley, 7 C. & P. 264.

(n) Williams v. Ogle, 2 Str. 889.

(0) Abitbol v. Beniditto, 2 Taunt. 401. (9) Bingham v. Dickie, 5 Taunt. 14.

(m) R. v. Foster, R. & R. 412.

(p) R. v. Tannet, R. & R. 351. (r) R. v. Shakespeare, 10 East, 83.

NAMES OF PERSONS MENTIONED IN INDICTMENT.

191

it sufficient in such cases to describe one person only by name, and to state that the offence has been committed against that person, and another or others, according to the circumstances (8).

§ 191. Not only must the name of the party injured be accurately given, but the same rule applies to the names of all persons, who, in the description of the offence, are necessarily introduced into the indictment. Thus, where a prisoner was indicted for assaulting a prosecutrix, with the intent that one Peter Coscoran should ravish her, he was held entitled to an acquittal, the christian name of Coscoran not having been proved (t); and where the indictment charged that a person unknown stole some wheat, and that the prisoner was an accessary before the fact, the judge directed an acquittal, on its appearing that the principal felon had been examined by the grand jury, and had his name written at the back of the bill (u). It seems, however, that if the grand jury were to return a separate bill against the principal felon by name, this would not, in itself, be sufficient to invalidate an indictment against an accessary, which charged the principal felony to have been committed by some person or persons unknown (v). The name of the prisoner is not a matter of essential description, because on this subject the prosecutor may have no means of obtaining correct information. If, therefore, the prisoner's name or addition be wrongly described, or if the addition be omitted, the Court may correct the error, and call upon the prisoner to plead to the amended indictment (w).

(8) 7 Geo. 4, c. 64, § 14, enacts, "That in any indictment or information for any felony or misdemeanor, wherein it shall be requisite to state the ownership of any property whatsoever, whether real or personal, which shall belong to, or be in the possession of, more than one person, whether such persons be partners in trade, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be ; and whenever, in any indictment or information for any felony or misdemeanor, it shall be necessary to mention, for any purpose whatsoever, any partners, joint tenants, parceners or tenants in common, it shall be sufficient to describe them in the manner aforesaid; and this provision shall be construed to extend to all joint-stock companies and trustees." So the act relating to forgery, 11 Geo. 4 & 1 Will. 4, c. 66, contains a similar provision in § 28. See also 7 Geo. 4, c. 46, § 9.

(t) R. v. Dunmurry, Ir. Cir. R. 312, per Brady, C. B.

(u) R. v. Walker, 3 Camp 264, per Le Blanc, J. (v) R. v. Bush, R. & R. 372. (w) 7 Geo. 4, c. 64, § 19, enacts, "That no indictment or information shall be

192

DESCRIPTIVE ALLEGATIONS IN CIVIL CAUSES.

$192. The rule which renders it necessary to prove essentially descriptive allegations need not, in this place, be illustrated at any length with respect to civil actions, because the question has already been discussed, while examining the cases that have been decided on the statutes authorising amendments. It may, however, be observed, first, that these statutes will not cure a variance which arises from the misjoinder or nonjoinder of plaintiffs (x); and next, that in actions on special contract no variance will arise from omitting part of the consideration for the defendant's promise, unless such consideration be in the nature of a condition precedent (y). In the case of Clark v. Morrell (z), the declaration stated that the plaintiff agreed, amongst other things, to manage some chemical works for the defendants, who, in consideration of such agreement, promised to pay him a certain salary; it then contained an averment of mutual promises to perform the said agreement, and closed with alleging a breach on the part of the defendants. The agreement, on production, being found to contain stipulations that the plaintiff should not communicate his discoveries to strangers, and should give the defendants the exclusive benefit of his knowledge, as far as their works were concerned, it was objected that there was a variance between the declaration and the agreement, as the former was silent as to these stipulations, which constituted material parts of the consideration for the defendants' promise.

abated by reason of any dilatory plea of misnomer, or want of addition, or of wrong addition of the party offering such plea, if the Court shall be satisfied by affidavit or otherwise of the truth of such plea; but in such case the Court shall forthwith cause the indictment or information to be amended according to the truth, and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded." See R. v. Orchard, 8 C. & P. 565, where a woman charged with the murder of her husband, being described as "A. the wife of B. C." the record was amended by inserting the word "widow" instead of "wife," per Lord Abinger.

(x) See, as to the law on this subject, the 1st ch. of Chitty on Pl., and, among other cases, Phelps v. Lyle, 10 A. & E. 113; Broadbent v. Ledward, 11 A. & E. 209; 3 P. & D. 45, S. C.; Story v. Richardson, 6 Bing. N. C. 123; Wallis v. Harrison, 5 M. & W. 142; Cocks v. Brewer, 11 M. & W. 51.

(y) As to the distinction between conditions precedent and conditions subsequent, see Wynne v. Wynne, 2 M. & Gr. 8; Richards v. Hayward, id. 574; Mathews v. Taylor, id. 667; Galloway v. Jackson, 3 id. 960; Fishmongers' Co. v. Robertson, 5 id. 131; 6 Scott, N. R. 58, S. C.; Brooke v. Spong, 15 M. & W. 153. (≈) 1 M. & Gr. 841; 2 Scott, N. R. 17 ; 9 Dowl. 461, S. C.